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Wednesday, August 27, 2014
Eminent Domain: City Seizure of Protest Signs Illegal?
By Robert Thomas @ 7:33 PM :: 6594 Views :: First Amendment, Land Use

EM Hauulaeminent_domain_abuse

Hawaii Federal Court: "Quick-Take" In Eminent Domain May Not Give Condemnor Exclusive Possession

by Robert Thomas, InverseCondemnation, August 27, 2014

Remember that case which we posted about earlier, in which the City and County of Honolulu condemned an undeveloped lot in rural Oahu for a fire station, but has been met with staunch resistance by the property owners? Not only did we post on the case, but it made national waves, also.

The City filed an eminent domain action in state court, and obtained a writ of immediate possession. After that, the City removed the eminent domain protest signs the owners had maintained on the property. The owners objected, filing a complaint in U.S. District Court alleging that the City went on the property and posted a "removal notice" under the City's newly-adopted "Bill 54," an ordinance allowing the City to seize property "stored" on public property provided it "tags" it 24 hours in advance, and that the removal was retaliation for the signs' content.

The complaint alleges that the day following the seizure, the City "pulled up the signs from the ground" and stored them. The owners maintain the property is not yet public property (under Hawaii law, title does not pass in eminent domain until the court enters a judgment), so the City had no right to remove and store their signs. The complaint's causes of action include violation of the Fourth Amendment search and seizure provisions, a violation of procedural due process, a First Amendment violation of her speech rights, and others including common law trespass, conversion, trespass to chattels, and replevin, and seeks damages under § 1983, declaratory judgments, and injunctive relief.

Each side moved for summary judgment, and the federal court last week issued this order denying both motions.

The City asserted that once it obtained the order of immediate possession from the state court, the property became public property, and the owners surrendered their rights to maintain the protest signs. The owners countered that the writ did not give the City ownership, and that the City did things after it obtained the order that were consistent with the owners still having rights, such as allowing the owners to maintain the property, issuing citations to the owners when they failed to do so ("When James failed to mow the lot frequently enough, James received a September 14, 2011 citation from the City for a 'Vacant Lot Overgrown.'"), and accepting property tax payments. The City also has not funded the fire station, and doesn't seem to be making any effort to actually build it.

Under Haw. Rev. Stat. § 101-29, state and county condemnors can get immediate ex parte possession by making a motion and paying an estimate of just compensation to the court. The court "shall" issue the order which gives the condemnor "possession of the real property sought to be condemned and permitting the State or county to do such work thereon as may be required for the purpose for which the taking of the property is sought." The court rejected the City's argument that this language meant that as a matter of law, it has all rights of a property owner. See Order at 11 ("In light of the Possession Order, the City argues that the City had possession of the subject property to the exclusion of James, meaning that James was trespassing on the subject property when she erected the signs and that the City had the absolute right to remove them."). The court recognized -- correctly, we think -- that the issue was whether the City's possession was exclusive under the statute and the order of possession. The court concluded the statute:

says nothing about the City obtaining exclusive possession of real property - rather, it merely states that upon the appropriate showing, the State court will issue an ex parte order putting the City "in possession of the real property sought to be condemned and permitting [the City] to do such work thereon as may be required for the purpose for which the taking of the property is sought." Just as with the Possession Order, this languages suggests that possession is not absolute -- § 101-29 does not grant the City free reign to do as it pleases with the property, and the City may only do such work as may be required for the purpose of the taking. And even the City recognizes that § 101-29 does not totally divest the landowner of all rights to the real property -- it does not operate to transfer title of the real property, which occurs at the end of a condemnation action.

Order at 13-14 (emphasis original). With the statute and the order of possession not giving the City rights to exclude the owners as a matter of law, the court turned to the facts and concluded that there was a dispute over exactly what actions the City took post-possession that were inconsistent with its claim that the owners had no rights. Order at 19-20 ("Despite this general purpose of quick-take statutes, the City ignores that its own actions are not consonant with its assertion that it took possession of the subject property at the time of the Possession Order. The City confuses what it could have done under the quick-take statute and what it actually did. As a result, the general purpose of the quick-take statute does not resolve this factual dispute.") (emphasis original). And you know what a factual dispute means: summary judgment denied, and you're going to trial.

The court also denied the property owners' motion for summary judgment on their procedural due process, trespass and conversion claims since there are factual disputes about whether the owners could have retrieved the signs from the City.

Finally, this little bit of municipal chutzpah: the City responded to the owners' argument that it did not exercise exclusive control over the property because it either allowed or required the owners to continue their responsibilities as property owners by paying property taxes, and by maintaining the property (and getting cited by the City when they didn't), by asserting that the owners had no obligation to do so, and should have either refused to respond, or sought reimbursement of the property tax payments and vacatur of the citations. The court rightly rejected that argument:

it appears that the City either ceded at least some of its possessory rights to James and/or required James to continue her responsibilities of ownership and maintenance of the subject property. Indeed, James did not take care of the subject property or pay taxes out of largess but because she was prompted by the City, who now asserts she had no obligation to do so. That James could seek reimbursement of the taxes and/or vacatur of the citations does not change the facts -- the City itself directed her to exercise indica of ownership over the subject property.

Slip op. at 18.

See you in trial! Stay tuned.

PDF: Order, James v. City and County of Honolulu, No. 13-00397 JMS-BMK (D. Haw. Aug. 20, 2014)



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